Opinion
315 KA 16–01335
03-16-2018
The PEOPLE of the State of New York, Appellant, v. Michael SWEAT, Defendant–Respondent.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO OF COUNSEL), FOR APPELLANT. MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT–RESPONDENT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO OF COUNSEL), FOR APPELLANT.
MICHAEL J. STACHOWSKI, P.C., BUFFALO (MICHAEL J. STACHOWSKI OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, NEMOYER, AND TROUTMAN
MEMORANDUM AND ORDER
Memorandum:We previously held this case, reserved decision, and remitted the matter to Supreme Court to determine whether defendant has standing to challenge the allegedly unlawful search of the home where the police discovered the gun that defendant sought to suppress and, if so, whether one of the lessors of the home consented to the search ( People v. Sweat, 148 A.D.3d 1641, 51 N.Y.S.3d 299 [4th Dept. 2017] ). Upon remittal, the court determined that defendant lacks standing to challenge the warrantless search of the home. That was error.
"[A] defendant seeking to suppress evidence, on the basis that it was obtained by means of an illegal search, must allege standing to challenge the search and, if the allegation is disputed, must establish standing" ( People v. Sylvester, 129 A.D.3d 1666, 1666–1667, 12 N.Y.S.3d 469 [4th Dept. 2015], lv denied 26 N.Y.3d 1092, 23 N.Y.S.3d 649, 44 N.E.3d 947 [2015] [internal quotation marks omitted] ). To establish standing, the defendant must demonstrate that he or she has a legitimate expectation of privacy in the place searched (see People v. Ramirez–Portoreal, 88 N.Y.2d 99, 108–109, 643 N.Y.S.2d 502, 666 N.E.2d 207 [1996] ). A defendant has no expectation of privacy in a home where he or she is merely a casual visitor with tenuous ties to it (see People v. Smith, 155 A.D.3d 1674, 1675, 64 N.Y.S.3d 446 [4th Dept. 2017] ), or is a mere occasional visitor (see People v. Hailey, 128 A.D.3d 1415, 1417, 7 N.Y.S.3d 808 [4th Dept. 2015], lv. denied 26 N.Y.3d 929, 17 N.Y.S.3d 92, 38 N.E.3d 838 [2015] ). In such cases, the defendant does not have standing to challenge the legality of the search of the home (see Hailey, 128 A.D.3d at 1417, 7 N.Y.S.3d 808 ).
According to the unrefuted testimony at the suppression hearing of defendant's brother and sister-in-law, the lessors of the home, defendant resided there until two months prior to the incident. Nevertheless, defendant maintained the address associated with the home as his permanent mailing address, and, although he removed much of his property, he continued to keep clothes there. He returned frequently to care for his nieces and nephews, and he was entrusted with the home when his brother and sister-in-law were away. Defendant was at the home often and slept there overnight between 5 and 12 times per month. Thus, we conclude that defendant's "connection with the premises was substantially greater than that of a casual visitor, and ... that ... defendant had a reasonable expectation of privacy in the home" ( People v. Moss, 168 A.D.2d 960, 960, 565 N.Y.S.2d 935 [4th Dept. 1990] ).
Inasmuch as "our review is limited to the issues determined by the court" ( People v. Schrock, 99 A.D.3d 1196, 1197, 951 N.Y.S.2d 819 [4th Dept. 2012] ), and the court failed to determine whether one of the lessors of the home consented to the search, we continue to hold the case and reserve decision, and we remit the matter to Supreme Court to determine that issue.
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Supreme Court, Erie County, for further proceedings.